Standing Committee B

[Mr. John McWilliam in the Chair]

Proceeds of Crime Bill

Clause 22 - Order made: reconsideration of benefit

Question proposed [this day], That the clause stand part of the Bill. 
 Question again proposed.

David Wilshire: When you listen to or watch a soap opera, one of the things that you need is a résumé of episodes that you have missed.

John McWilliam: Order. As one who does not watch soap operas, I need no such thing.

David Wilshire: I realise that difficulty, Mr. McWilliam, but if we had a different Chairman, I could have reminded him of what I said before I was politely interrupted. However, I will spare you that. I was worried that if a genuine mistake were found by the director or the prosecution services, it would be possible for them to ask for the amount to be reduced rather than increased. That relates to subsection (1). No doubt the Minister will respond in due course.
 Subsection (4)(c) states that property that is gained before the review should be taken into account. If the hon. Member for Glasgow, Pollok (Mr. Davidson) was here, we might be in danger of agreeing about the need to tighten up. What is the situation regarding property that is criminally obtained—if that it the correct phrase; I am sure that the Minister knows what I mean—subsequent to the first order if further criminal gain has resulted in new property? I understand that subsection (4) means that that could not be taken into account, but I wonder why. If one wishes to confiscate property that is the proceeds of crime—and I understand that the Minister is interested in general property that is acquired illegally rather than specific property from the crime—why is any property that was criminally obtained subsequent to the first order excluded? There may be the possibility to tighten that up. 
 Subsection (7)(b) states that the court ``may vary'' what was previously decided. It will be helpful if the Minister confirms that that means that the court could reduce that amount, although the prosecution is required to present only arguments that would increase it. That is the point that I made before lunch. Notwithstanding the constraint on the prosecution, subsection (7) suggests that the court could listen to arguments and decide that the amount should not be increased and that a mistake was made in the first place, so the amount should be reduced. I assume that that is the meaning of ``may vary''. 
 Subsection (8)(b) refers to the date of the original order. If I read it correctly, as a non-lawyer, I understand that a court may intervene to make a new order or vary the order. Instead of the original dates for appeal periods and cut-off dates, which we discussed on earlier clauses, a new order would restart such time limits. I raise that to make it clear in my mind that if a new order is made, the period of appeal starts again, rather than an appeal being ruled out of time because it was not made within the period of the original order. It would be useful to clear that up.

John McWilliam: Order. It would also be helpful if hon. Gentlemen were to ask permission to remove their jackets. If they were to do so, I would gladly grant it, but I have not yet heard anyone seek such permission.

David Wilshire: It is not often that I apologise on behalf of hon. Members on both sides of the Committee. I foolishly assumed—it shows that I am a non-lawyer—that your generous ruling allowing us to remove our jackets during the previous sitting applied to this sitting, Mr. McWilliam.

John McWilliam: Unfortunately, the rule is that it must be done sitting by sitting. The other daft thing about the rule is that it does not apply to hon. Ladies.

David Wilshire: I shall not go into what might or should apply to hon. Ladies. I shall merely say that if you describe it as a daft rule, Mr. McWilliam, I shall describe it as daft that I forgot to ask your permission. I hope that you will accept my apology and retrospectively grant me permission to leave my jacket where it is. I am sure that other jacketless Members would wish to say the same thing.
 Where was I?

George Foulkes: Going round in circles.

David Wilshire: No, I was not going round in circles, I was moving on to subsection (9). It would be potentially dangerous to repeat what I said several times before lunch, but I want to draw the Minister's attention to the fact that we are watering down the powers to raise money and to confiscate by saying, once again, that notwithstanding what the court feels that it should impose, if the convicted person cannot afford it, it will be a lesser amount. I have said several times that that is not a sensible way to proceed. It seems to me that if a court feels that the amount of money that should be taken from somebody is X, then it should be X irrespective. If the person cannot afford it, that is tough luck. The hon. Member for Glasgow, Pollok has arrived just as I am saying something that will be music to his ears.

John McWilliam: Order. Unfortunately, it has been music to his ears on rather too many occasions. The rule is that tedious repetition is not allowed. The repetition may be becoming tedious, and the hon. Gentleman has just received a yellow card.

David Wilshire: Yes, I wondered whether it was tedious, repetitious or both. I was about to move on anyway, so I shall not chance my arm on that. One of the benefits of having more than one Chairman is that the rule is not so rigidly applied. Nevertheless, I was going to leave the matter even before you asked me to do so, Mr. McWilliam.
 I want to refer to subsection (11), which I find curious. I am surprised that it has not cropped up in debate before. It states: 
``In deciding under this section whether one amount exceeds another the court must take account of any change in the value of money.''
 I suspect that we all know what that means. However, it seems to me that it leaves the interpretation wide open to abuse. I assume that it means that the court may take account of inflation. Despite what the Chancellor has been saying downstairs, it is highly unlikely that the value of money will increase rather than decrease, irrespective of which party is in power. The provision seems to say that the court may take account of inflation between the time when the first order is made and the time when the second is made.

Mark Field: I wonder whether my hon. Friend has given any thought to the idea that subsection (11) might also take account of changes in the exchange rate, given that a significant amount of money may have been sequestrated, having come from abroad, or may be overseas currency that has been subject to a confiscation order under clause 6.

David Wilshire: In so far as it is possible to go down that route before you try to stop me, Mr. McWilliam, my hon. Friend is right. I had considered that that was one of the issues. However, it seems to me that a reference to a change in the value of money should, in legal terms, be much more specific than that general statement allows. If the Minister confirms my supposition—that it means that if inflation has taken its toll, one must compare the real value of the original order with the current value of the subsequent one—the Bill should say so.
 On the basis that politicians of all political persuasions are adept at using the statistics that suit their purpose best, simply referring to inflation will not necessarily ensure that one arrives at a factual figure for the absolute percentage increase that one should apply. If my supposition is correct, the Bill could usefully include an explanation of how the change in the value of money should be calculated. Should it be with reference to the retail prices index or other statistics, given that there are statistics, damned statistics and lies and we do not want a court to go down that avenue? My hon. Friend the Member for Cities of London and Westminster (Mr. Field) said that not only are we talking about the value of money—I assume that the Bill refers to the changes in the value of sterling—but it is appropriate for someone of my political persuasion—

John McWilliam: Order. I have given the hon. Gentleman some leeway, but if he starts arguing the pound against the euro, what happens if it changes and whether or not it should change, he will be out of order.

David Wilshire: You are very perceptive, Mr. McWilliam. I was about to ask what would be the exchange rate to the euro in the event of it coming into force. However, given that you have ruled that I must not say that, I would not dream of so doing. Nevertheless, irrespective of whether it is appropriate to debate the euro, there is a genuine point to be made in that when a Bill asserts what account should be taken of the differences in value, irrespective of party political banter, it should contain a legal definition of what is meant and how it is to be calculated.

Bob Ainsworth: I thought that the hon. Gentleman would never stop. His first point was whether there should not be a requirement on the prosecutor to discover—if that were the case—that there may have been an overcalculation of the benefit and make that known to the court so that the amount could be reduced.
 We must remember that the benefit resulted originally from a statement by the prosecutor or the director and the opportunity was given to the defendant to rebut the statement to show that the items involved were not the proceeds of crime. I cannot envisage circumstances in which the prosecutor will discover under the clause that there has been an overcalculation of the benefit. Therefore, the hon. Gentleman's argument is not necessary. 
 The defendant is given the opportunity to seek a postponement if he is unable to show the origins of the properties. Under usual circumstances, that postponement can extend for up to two years and, in exceptional circumstances, it can go beyond that. However, we should not be writing into the Bill a requirement that the defendant can return at any time after six years, having managed to make a case that the items that were thought to be the proceeds of crime at the time were not. The process would be wide open to abuse. We should stick with the Bill and the ability of the defendant to seek postponement so that he can prove the origins of the property. 
 The hon. Gentleman referred to further criminal activities that were not connected with the original conviction that took place after the original hearing, and asked why the benefits or proceeds of those activities could not be confiscated, too. The Bill relates to criminal confiscation of the proceeds of the crime for which the person was convicted. If further crime were committed after the original conviction, it is a matter for that conviction to take into account the criminal gains that were made. It is not for the prosecutor to return to a previous conviction and attempt to rope in the gains made by subsequent crime. 
 The hon. Gentleman asked whether the reference in subsection (7)(b) to the court's ability to vary the order allows the court to reduce the order. It does not. At the time of the original decision there is an opportunity to prove the benefit of the criminal activity and the available amount. The purpose of the clause is not to allow the court to vary the order downwards, but to allow the prosecutor to return and show the benefits that were originally assessed to be inadequate.

David Wilshire: I am grateful to the Minister for having made that clear. There is an argument of principle about whether the court should be able to vary the order downwards. However, if as the Minister says, the Government intend that that should not be possible, would it not be better if the wording of the clause referred to the ability to ``increase'' or ``vary upwards''? That would avoid doubt by putting into words what the Minister has just said. As the Bill stands, however, ``vary'' could be taken to mean upwards or downwards.

Bob Ainsworth: The subsection relates to circumstances in which
``the defendant's benefit exceeds the amount found as his benefit for the purposes of the confiscation order''.
 Paragraph (b) states that 
``if it exceeds the amount required to be paid under the confiscation order''
 the court 
``may vary the order by substituting for the amount required to be paid such amount as it believes is just.''
 Therefore, if the amount is increased but the court believes that to take the entire increase into account would be unjust, it may choose not to take into account the entire increase. The Bill does not allow the court to conclude that the benefits were lower than those in the original confiscation order, and nor should it. 
 As I said, at the time of the original confiscation, the defendant can put his case and show that his property was not the proceeds of crime. He has the opportunity to request a postponement in order to do that, of up to two years in normal circumstances and, in exceptional circumstances, beyond two years. That should provide him with the opportunity to prove his case. I do not understand why we should include yet another provision for that. 
 In discussing subsection (9), the hon. Gentleman suggests that we are being too soft and allowing people unnecessarily to keep the proceeds of crime. The provisions in subsection (9), like those in earlier clauses, are included in order to avoid double counting. The court goes through a process when it originally confiscates the proceeds of crime. It discounts other orders that may have been made subsequently. It may have imposed a fine after the confiscation order was made. It would be wrong if, in revisiting the benefits of the proceeds of crime, the court did not take into account any other orders that the defendant had been required to meet, and the fine imposed on him. We would effectively be confiscating the proceeds of crime twice, through either other orders or the fine imposed at the original confiscation hearing.

Nick Hawkins: I am sorry to break the Minister's flow on that point, and I do not want to be difficult by referring back to his previous response to my hon. Friend the Member for Spelthorne (Mr. Wilshire). However, since he discussed subsection 7(b), I have been examining it carefully, and I believe that he is mistaken. Nothing in the words ``may vary the order'' and put in such amount
``as it believes is just''
 constrains the direction of the variation. I hope that the Minister and his officials will look again at subsection (7)(b), because the words at the beginning of paragraph (b) do not have the effect that the Minister says they do. The court is given the power to ``vary the order'' by 
``such amount as it believes is just''.
 The court is not constrained to use its discretion to vary the order in only one direction.

Bob Ainsworth: We must read all of subsection (7), and not just paragraph (b). It states:
``If the amount found under the new calculation of the defendant's benefit exceeds the amount found as his benefit for the purposes of the confiscation order the court—
(a) must make a new calculation . . . and
(b) if it exceeds the amount required to be paid under the confiscation order, may vary the order by substituting for the amount required to be paid such amount as it believes is just.''
 The subsection applies in instances in which the recalculation increases the amount of benefit from the original confiscation, and it allows the court to decide that, if circumstances arise, it might not be just to increase the confiscation order to take in the whole of that increase. I do not believe that the subsection allows the court to decrease the amount from that prescribed in the original confiscation order.

Nick Hawkins: The Minister is right to say that we must consider the whole of subsection (7), which prescribes the only circumstances in which the court may vary the amount found as benefit. If the court is given the power to vary the order, and to decide that the amount to be paid is just, its final decision is not constrained, whatever circumstances led it to make the calculation. That is my point.

Bob Ainsworth: The power given to the court begins only when the defendant's benefit exceeds the amount that must be paid. In any case, the clause is not intended to allow reconsideration of whether the amount should be decreased.
 The hon. Members for Orkney and Shetland (Mr. Carmichael) and for Beaconsfield (Mr. Grieve) have shown their combined expertise at redrafting on their feet. I do not know why we bother to employ parliamentary counsel when Opposition Members are so talented. I do not believe that the clause allows courts to reconsider whether the amount should be decreased.

Dominic Grieve: Despite the combined capacities of the hon. Member for Orkney and Shetland and myself, we do not pick up on every point. My hon. Friend the Member for Surrey Heath (Mr. Hawkins) made a good point. It is clearly implicit in subsection (7) that an upward variation is intended, but there is a provision that the variation need not extend to the new amount: it could be somewhere in between, if that is considered just. He is right to say that, on the face of it, subsection (7) could be read as stating that if the amount under the new calculation exceeds the amount found as the defendant's benefit, the court has the unfettered power to vary the amount and move it up or down. That was a good point that the Minister might bear in mind, because no one in the Committee expects the amount to be adjusted downwards.

Bob Ainsworth: It is good to hear that no Committee member would expect that result. I wonder whether the hon. Gentleman has the agreement of all Opposition Members on that, including the hon. Member for Cities of London and Westminster, who has come up with some interesting views in Committee.
 I am more than happy to look over the clause with my officials to check that it says what I believe it to say, and that a downward variation cannot arise.

Nick Hawkins: That is helpful, but the Minister should understand that my hon. Friend the Member for Beaconsfield and I are only trying to clarify the subsection. My hon. Friend the Member for Spelthorne made a good point. We want the clause to do precisely what the Minister wants it to do. We are not trying to weaken subsection (7)—we want to make sure that it operates correctly—but we genuinely believe that it contains a trigger and a power. The trigger makes the way in which it should operate implicit, but not explicit. The power is clearly unfettered—it is in the words.

Bob Ainsworth: On this occasion, I absolutely and unequivocally accept the hon. Gentleman's reassurance that he has no intention of changing, softening or weakening the Bill. He is merely trying to ensure that it works as intended.

Ian Davidson: I see a flying pig.

Bob Ainsworth: I am not sure whether that was dissent from the Back Benches. [Interruption.]

John McWilliam: Order. There is a lot of conversation going on, but we are trying to listen to the Minister. Hon. Members who wish to have private conversations may do so outside the Room.

Bob Ainsworth: Thank you, Mr. McWilliam, for your protection from my hon. Friend the Member for Glasgow, Pollok. It is much appreciated.
 Subsection (11) states: 
``In deciding under this section whether one amount exceeds another the court must take account of any change in the value of money.''
 After requiring the court to take into account the original proceeds of crime and any interest and benefit that may have accrued from investment, it would be strange and very unfair to not encourage it to take account of changes in the value of money. There are two sides of the coin when updating the decision with regard to benefits that the defendant may have accrued through the investment of his proceeds and the downside of time having elapsed.

David Wilshire: I can well understand why, having bowled the Minister some tricky and technical questions, the way in which I posed the last one may have slipped his mind. I do not disagree with him. I accept that there should be adjustment. However, the simple reference to a change is inadequate. The way in which it is taken into account and method used to calculate inflation should be in the Bill. I did not disagree with the principle, but said that the Bill was insufficiently clear to achieve the Minister's intention.

Bob Ainsworth: It might be difficult to spell out in the Bill exactly what the court must do to calculate the revaluation. I will consider what the hon. Gentleman said, but it would be difficult to lay down a set of proceedings that the court must follow when calculating movements in the value of money. The court must try to be just when updating the decision, and subsection (11) provides for that. I will consider whether there is a way of spelling out the calculation that would not lead to injustices that no hon. Member wants.

Mark Field: Does the Minister not agree that we have already examined investments, which would clearly be caught? Likewise, the Bill contains a provision on interest. What does the Minister envisage would be caught by subsection (11)? No doubt, when examining investment, there would be a freeze on various guilty defendants' accounts on which a confiscation order was made. I appreciate the time that would be taken between the freezing of an account and a final judgment and reconsideration of benefit. We may say that interest has accrued over a matter of months or years on a defined account, and there may have been a range of investments that, dare I say—

John McWilliam: Order. The hon. Gentleman has dared to say too much. That was a very long intervention.

Bob Ainsworth: We are considering an application that is made for a review order to reconsider benefits because evidence has come to light to show that the benefits of the proceeds of crime were higher than originally discovered. Who knows what the convicted person has managed to do with that money in the preceding period? We are talking about moneys that arose as a result of the original conviction, but are only discovered later. We are trying to take into account all the proceeds of crime—but no more. To do that, we ought to be able to take into account what the defendant has been able to do with that money to appreciate its value—and if it has depreciated, we should take that into account.
 If we cannot do both those things, we are in danger of committing a great injustice. As the hon. Member for Spelthorne has pointed out, subsection (11) enables us, in the overwhelming majority of cases, to take into account the depreciation that might have occurred. However, any depreciation will have been considerably less since the Labour party came to power, than it was under the preceding Conservative Government. 
 I have tried to cover all the points that have been raised, and I hope that the explanations that I have given have been satisfactory. 
 Question put and agreed to. 
 Clause 22 ordered to stand part of the Bill. 
 Clause 23 ordered to stand part of the Bill.

Clause 24 - Inadequacy of available amount:

Dominic Grieve: I beg to move amendment No. 96, in, page16, line 44, leave out `the' and insert `a'.
 This is the simplest of amendments. When I was reading through the clause, it occurred to me that the word ``the'' would be better rendered as ``a''. Although it is a straightforward matter, it struck me as odd, because I read ``the recipient'' as implying an individual, when, in this context, it clearly refers to anyone who happens to be a recipient.

Bob Ainsworth: I am sure that the hon. Gentleman has tabled the amendment in an attempt to get his own back for all the hard work that he is having to do, in Committee and in the House.
 If the Government could have discerned any difference that would be made by changing the definite article to the indefinite article, we would be happy to accept the amendment as an improvement to the Bill. However, there is no discernable difference, and therefore there is no justification or reason to accept the amendment. 
 I am unsure to what extent I ought to go along with this attempt to spin out the Committee's consideration of the matter. However, we have read the alteration that the amendment proposes time and again, and we do not think it means anything, and I do not know what more I can say.

Dominic Grieve: I am not trying to spin out the Committee's proceedings. We have only taken about 30 seconds over the matter, and I do not intend to take much longer. I think that the version that I have proposed is better English. If we do not take the opportunity to flag up such points, we will not, in the long term, obtain changes to the way in which legislation is drafted. Although, I think that ``a'' is better than ``the'', I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Question proposed, That the clause stand part of the Bill.

David Wilshire: I want the Government to clarify several substantial issues concerning the clause.
 As the clause touches on matters that I have previously raised, I will do my best to be neither tedious nor repetitious. However, on this occasion the key issue that I have raised has been amplified, and there are also questions that need to be answered that have not been raised in previous debates. 
 The clause brings into focus what happens if the available amount is less than the court decides. With regard to that, I will not explain again why I believe we could be tougher. Suffice it to say that the clause makes it crystal clear that, where there are insufficient funds to meet an order, the court is being invited to reduce that order and I continue to question whether we should be doing that. However, I have said enough on that subject. 
 Subsection (4) addresses the distribution of available assets, with regard to bankruptcy or winding up. That is an important matter. As I understand the situation with bankruptcy or other such matters, the Inland Revenue has a prior claim, as does Customs and Excise, on the assets that are realisable, and distribution to other creditors takes place afterwards. Again, I am a layman, and that is how I have always understood the law. If I am wrong, perhaps someone will put me right. It would be helpful if the Government were to say what priority such claims for confiscation orders would have. If they are prior claims over general creditors, would they come before or be ranked equal with the Inland Revenue and Customs and Excise? That information would be useful not only to us but to the courts and those seeking to collect the money. 
 In the light of the priority given to a claim when somebody goes bankrupt, will the Minister reassure us that by making reference to the issue of bankruptcy, we are not pointing to a loophole in the legislation? Before I became a Member of Parliament, I was in business for long enough to know that some people found going bankrupt a useful loophole when they faced mounting debts. Surprise, surprise, after not too long a period, if I was one of those who was owed the money, they would cease to be bankrupt, and before I knew where I was, they were back in business again. If that were to apply to the criminal fraternity, what would happen after the process of someone being declared bankrupt, the order being reviewed, and the amount owing being reduced? Surprise, surprise, not all that long later, the person would return like phoenix from the ashes and have his bankruptcy discharged. Has the court lost the power to go back and confiscate that money, or is it written off? If it is written off, that is wrong. Will the Minister assure me that notwithstanding bankruptcy and winding up, if those assets become available again at some stage in the future, the full amount of the original order should be sought and collected? 
 My other concern relates to subsection (5), which refers to inadequacy. It states that if the court is to make a judgment on how much the amount should be reduced by, it should disregard things wholly or partly. My worry is that if something is wholly to be disregarded, it is the entire amount. However, if it is partly as a result of something, will a calculation be made as to what percentage ``partly'' means? That gives rise to a sense of injustice. If something is partly to be disregarded, one can pursue the whole amount nevertheless, but if one partly disregards things, should not one partly disregard the amount collected by the same percentage? Will the Minister comment on that?

Bob Ainsworth: The confiscation system is designed to ensure that orders are not made for more than the value of the property available to justify them. However, it may happen that the realisable property, if assessed by the court at the defendant's request, loses its value before the order is fully satisfied. The clause therefore enables the court to reduce the amount payable. The clause is based on existing legislation with one important exception, which is worth flagging up at this point. We are transferring the functions currently dealt with by the High Court to the Crown court, making it the single venue for confiscatory procedures. As is well known, we have already made some general arguments in favour of the change. The change of venue from the High Court to the Crown court is particularly valuable. One of the weaknesses of the current system is that the Crown court makes the confiscation order, which is then enforced by a magistrates court. The result is that the Crown court loses touch with the order.
 The hon. Gentleman raised several points that he has already mentioned. He raised again the issue of orders that have been placed on the defendant, which he believes should not be outside the confiscation proceedings. When orders have been made on the defendant for payment of fines, those fines must be excluded from the proceedings. Otherwise, we would be double counting and claiming back more than the proceeds of crime. 
 With regard to bankruptcy, the hon. Gentleman is absolutely right. If bankruptcy proceedings were to take precedence over confiscation proceedings—for example, in respect of property—long after a restraint order had been put on the property, a considerable number of people could come up with bankruptcy proceedings to prevent confiscation. When confiscatory proceedings have started, bankruptcy cannot then take precedence. It will not be possible to suggest that bankruptcy proceedings that started before confiscation proceedings should be disregarded and overridden by a confiscation procedure that starts after that date. I do not know how that could be achieved, but we are trying to close the potential loophole that he referred to by ensuring that bankruptcy proceedings cannot be used to provide a way out for people facing confiscation orders. 
 I do not know if I have satisfied the hon. Gentleman. He said before that he does not accept my points. I do not know what more I can say to satisfy him.

David Wilshire: I am grateful to the Minister for his comments on bankruptcy. Can he clarify my query about where the priority of any claim, in respect of bankruptcy, would lie? Would it be before or after the Inland Revenue, or with the general creditors?

Bob Ainsworth: We are not changing the bankruptcy procedures, and the hierarchy within them will remain the same. The procedure that starts first is the one that takes precedence. If confiscation proceedings have commenced, they take precedence over bankruptcy proceedings. If bankruptcy proceedings have started before any confiscation proceedings have begun, the bankruptcy proceedings take precedence.

David Wilshire: My understanding is that when bankruptcy proceedings are initiated, there is a pecking order that determines which creditors will get the money. It would be helpful to know where in the pecking order a particular creditor would come.

Bob Ainsworth: Bankruptcy proceedings must be settled before any confiscation can take place. We are not changing the order of creditors within the bankruptcy proceedings.

Mark Field: I fully appreciate that, when bankruptcy proceedings have preceded a confiscation order, there should be preferred creditors—for example banks and mortgage companies—who would claim some of the assets. Is the Minister saying that non-secured creditors would hold themselves in a preferable position to the state in that regard?

Bob Ainsworth: The clause is not changing the bankruptcy proceedings. Those that have already commenced take precedence over confiscation proceedings. After the bankruptcy proceedings have been settled, the claim for compensation can be pursued. We are not proposing to unpick bankruptcy proceedings that have already commenced.

Mark Field: My hon. Friend's concern is that there will be a significantly diminished pool if such a view is taken. If you have bankruptcy proceedings under way, unless it is preferred that creditors should have the first bite at the cherry, should there not be some variation? Surely, under confiscation proceedings, the state will face a significantly diminished pool or will the variation be on the whole sum? Will preferred creditors receive a share that will take account of the variation or will they receive their full amount in advance?

John McWilliam: Order. I assure the hon. Gentleman that, although I took my wife Christmas shopping in New York at the weekend, I do not have bankruptcy proceedings under way.

Bob Ainsworth: I am sorry, but I am not sure on what the hon. Gentleman is inviting me to agree with. If a defendant goes bankrupt before confiscation proceedings can be taken against him, the ability to confiscate any of the proceeds of crime will be reduced. That is self-evident. I do not know what more I can say.

David Wilshire: I assure the Minister that I am not spinning out the matter. A real loophole is opening up, and I should be grateful if he would concentrate carefully on whether I might be right. He said that, in the event of bankruptcy proceedings being commenced before the order is made, they would flow and the order would come into effect on what is left thereafter. If that is so, and someone thinks that he will be charged or is part way through a court case and has a nasty feeling that he is about to lose, it would pay him to file for bankruptcy in attempt to get some of the money that could be confiscated shifted to a creditor where he might have an interest.

John McWilliam: Order. I have been double-checking. We are dealing with variation orders. Bankruptcy is dealt with under part 9. If the hon. Gentleman wants to debate bankruptcy in detail, he should wait until we reach that part of the Bill. I understand the linkage difficulty, but that is in relation only to a variation of the order.

David Wilshire: I am grateful for your advice, Mr. McWilliam. In the circumstances, I am sure that I have given the Minister due notice of such matters and by the time we discuss that clause, no doubt he will have an answer to my questions.

Bob Ainsworth: The hon. Gentleman is surely right that, if someone is being pursued on a charge for which there may be substantial proceeds of crime, it may be in his interests to commence bankruptcy proceedings to frustrate the confiscation. There are other ways in which to dispose of the assets before the finalisation of the charges, but that is one of the reasons why we introduced the concept of restraint to the start of the proceedings. If restraint is applied before bankruptcy proceedings have commenced, that takes precedent. I do not know how, and in what circumstances, we could justly disregard bankruptcy proceedings that had already commenced ahead of any other proceedings that had even been started against the defendant. We have done what we can to close any possible loopholes, and we cannot go further than that.

Ian Davidson: Notwithstanding the fact that the provision goes wider than bankruptcies, I should be grateful if the Minister could clarify the circumstances in which the court has reduced the amount to be paid by the guilty person. If it were found subsequently that a scam was being worked and that assets were being concealed, surely the court or prosecutor would still be able to return again to claw back money that had been evaded the first time by false declarations about bankruptcy or limited means.

Bob Ainsworth: As we have exposed in previous confiscations, in theory the prosecutor can return within a six-year period if he thinks that the benefit was not calculated correctly and he can convince the court that there should be a revaluation of the benefit. That would also apply to the circumstances outlined by my hon. Friend the Member for Pollok.

Nick Hawkins: I may have solved a potential problem for the Minister. He will note that, with one significant difference, the last two lines of subsection (3) are identical to those under clause 22(7), which my hon. Friends the Members for Spelthorne and for Beaconsfield and I were worried may be ambiguous. Subsection (3) states:
``it may vary the order by substituting for the amount required to be paid such smaller amount as the court believes is just.''
 Substituting the word ``smaller'' with the word ``larger'' would solve the problem to which we referred when debating clause 22. Because the same words are used in the provisions, albeit with the addition of ``smaller'', there is no reason why we should not add the word ``larger'' under clause 22(7) and thus achieve the clarification that we wanted when the Minister kindly accepted that we were not trying to water down the Bill. I hope that my suggestion has been helpful to the Minister and his officials. 
 Question put and agreed to. 
 Clause 24 ordered to stand part of the Bill.

Clause 25 - Inadequacy of available amount:

Dominic Grieve: I beg to move amendment No. 107, in page17, line 9, leave out paragraph (c).

John McWilliam: With this it will be convenient to take the following amendments: No. 108, in page 17, line 24, leave out paragraph (b).
 No. 109, in page 17, line 25, leave out subsection (5).

Dominic Grieve: Clause 25 concerns the circumstances when the court has made a confiscation order. If the order was calculated in respect of a currency other than sterling at the time when it was made, and the confiscation order was an attempt by the court to give a sterling valuation to the foreign currency concerned, what would happen if subsequently, due to fluctuations in the exchange rate, insufficient money was realised to reach the sterling equivalent?
 In addition, clause 25 provides for 
``any reason specified by the Secretary of State by order.''
 I wish to flag up first with the Minister that it would be helpful for the purposes of our deliberations if he could say what contingency that provision is likely to cover. I am bound to say that, apart from the problem of the fluctuations in currency, I cannot immediately think of one. However, if stocks and shares are involved and it takes some time for them to be realised, a similar problem may arise. 
 It is noteworthy that the procedure is limited to in imbalance of less than £1,000, although it is also provided that the Secretary of State may, by order, vary that amount from time to time at his discretion. We may be creating an unnecessary bureaucratic problem for ourselves. Why do we need to limit the amount that remains to be paid to £1,000 in such a way? If the value of stocks and shares or the sterling value of a foreign currency is calculated, and it turns out that, after a time has elapsed, that value cannot be met, the court would have to be satisfied that the inadequacy in the amount was due to a ``specified reason'', and not to the defendant's procrastination. 
 If the court decides that the defendant has realised the assets with reasonable speed, why limit ourselves to £1,000? Why not delete all reference to £1,000, as my amendment suggests? That removes the need for the Secretary of State to vary the amount by order. We could then have a simpler procedure. Where is the potential injustice or disadvantage to the director in that? 
 The Minister may have many explanations, but in some circumstances, huge sums of money might have to be confiscated. Indeed, the Minister hopes that we will go after the Mr. Bigs. A fluctuation of £1,000 in currency values or the value of stocks and shares could easily occur, and if it did, what procedure would we adopt? Would we have to go back to court for a complete recalculation or would there be an appeal by one of the parties? That seems a ponderous process if the problem is entirely a question of currency exchange rates or share valuation. All that would be required would be for the court to be persuaded that currency and share issues were the trigger that had caused the inadequacy of the available amount. 
 Will the Minister justify subsection (1)(c) and consider whether the Bill would be improved by its deletion. The Minister nodded in response to my comments about subsection (4)(b), which mentions 
``any reason specified by the Secretary of State by order.''
 Amendment No. 108, which would delete subsection (4)(b), is in a different category from amendments Nos. 107 and 109. Provided that the Minister can reassure me that he is thinking of stock and share values, I shall be far less concerned about amendment No. 108 than the others. If subsection (4)(b) relates to the change in the value of stocks and shares, why not state that?

Nick Hawkins: I want to add to the point made by my hon. Friend the Member for Beaconsfield, with which I agree. The Minister could talk a little about the link between the amount referred to in subsection (1)(c) and the amount about which the hon. Member for Orkney and Shetland will speak when we reach amendment No. 66 to clause 26. Liberal Democrat Members suggest that in clause 26(1)(c), the figure of £50 should be changed to £1,000. I do not wish to anticipate the hon. Member for Orkney and Shetland, but perhaps one reason why he chose £1,000 is because it is the amount that the Government have used in clause 25(1)(c). It would be silly if the Minister did not explain why that figure is used at that point.

John McWilliam: Order. We cannot anticipate clause 26, because we have not yet reached it.

Nick Hawkins: I am simply trying to point out that there is a link between the two amounts. It would be helpful if the Minister were to turn his mind to that when he responds to my hon. Friend.

Bob Ainsworth: It might also help if I were to comply with the rules that you have clearly outlined, Mr. McWilliam, rather than drifting on to subsequent matters and getting myself into deep trouble.
 Current legislation contains no facility for the enforcement authorities to write off a confiscation order. The principles underlying the prohibition are that the recovery of the proceeds of crime is especially important and unpaid sums should not be removed from the books. However, the Bill recognises that the amount payable may be amended in certain cases, providing that it is authorised by the court. The main provision for that is in clause 24, with which we have already dealt. If the defendant has cause to seek a variation, he should use the procedure in clause 24. 
 Clause 25 is designed to provide to a simplified way of dealing with a specific problem that has arisen in some Customs and Excise cases. It relates overwhelmingly to currency fluctuations. We have no preconceived ideas about what further specified situations may be. However, I would note for the hon. Member for Beaconsfield that gold may have been confiscated. The value of gold varies by comparison with currency, and the provision may therefore apply to that. The purpose of the second part is to allow the Secretary of State to make further specifications if a problem develops. 
 There have been several cases in which people have been arrested at an airport on suspicion of drug trafficking and have been in possession of an amount of foreign currency. Following trial or conviction, the foreign currency, as well as other property, has been taken into account in calculating the available amount, and a shift has taken place in the relationship between the value of that foreign currency and sterling. Overwhelmingly and almost entirely, the only issues in relation to which that simplified version might be useful to the authorities are currency valuations. The hon. Gentleman suggests removing the £1,000 figure, and he is absolutely right. However, we would have to be sure that that would be the only interpretation that would be put on our making provision to vary the figure by astonishingly large amounts. For the purposes that we envisage for clause 25, £1,000 is on the high side. As I said, clause 24 should be used when a defendant wants to challenge the available amount and obtain a reduction.

Dominic Grieve: I am grateful to the Minister for his explanation, but matters may, of course, work the other way. He gave the example of gold, and during a period of a few days, after 11 September, the price of gold, which, historically speaking, has recently been low, rocketed. Therefore, at the point of sale, the director might be the loser because the amount that the gold would realise, in sterling, was considerably more than the amount that the confiscation order had assessed it to be. In such circumstances, the prosecutor or director would, under clause 24, go back to obtain a variation of the order. Is that really what is intended? The order was correct at the time that it was made, but subsequent matters made it incorrect. Would not such circumstances better be met under clause 25?

Bob Ainsworth: It is not our intention to allow substantial profits to be made because of fluctuations in currency after a confiscation order has been made, which would result in confiscation of less than the proceeds of crime. However, I ask the hon. Gentleman to note a problem: we may wind up with Customs and Excise unable to satisfy the current legislation because it has no provision to write off reasonable amounts that arise because of currency fluctuations. If there were dramatic movement in the other direction, the director or prosecutor would be able to seek revaluation under clause 23 in the same way that the defendant may use clause 24 to seek to reduce the amount.
 We examined only currency fluctuations, which arise regularly in Customs and Excise cases in which foreign currency is seized. That was the only matter that we had in mind and we wanted to make provision in case it became apparent that other circumstances had arisen in which the same simplified measures should be available. 
 Everything that we have been told suggests that £1,000 is a more than adequate figure. I understand what the hon. Gentleman has said, but, as a result of discussions that I have had, I do not believe that we are considering amounts greater than that and, therefore, facing a high probability that the amount must be changed. If we accepted the amendment, I fear that the hon. Gentleman's simple logic would not be the only matter construed from its incorporation in the Bill.

Dominic Grieve: I note what the Minister has said, and I shall not press the amendment. However, it seems that the Minister and director may lose a simplified process. I am sure that the Minister would agree that clause 25 is not needed at all since one could always go back under clauses 23 or 24. For that reason, clause 25 must have a purpose, and that is simplicity. Nothing would be more straightforward than a case in which exchange rates caused the problem. There is no question of going to hunt for assets that are not present, or even the complex question of valuing a painting on a wall that must be subsequently sold. The matter is straightforward for exchange rates, stocks and shares or the value of gold because they are all quotable and have daily rates that allow for an assessment. In such circumstances, it would be easy for a court to make an immediate assessment about whether the defendant had used sleight of hand or whether there was a straightforward problem of asset realisation.
 I assume that clause 25 is supposed to be a cheaper way of proceeding. If it is not, why have it? The Government are missing a trick.

Ian Davidson: The hon. Gentleman and the Minister may want to consider the dangers that are apparent in the collapse of the value of foreign currencies. Is that a great reason why the Government should undertake a publicity campaign to warn people of the dangers of investing in the euro?

John McWilliam: Order. I do not think that it would be wise for any hon. Member to follow that road.

Dominic Grieve: The hon. Gentleman temps me in a direction in which I cannot go in the light of your ruling, Mr. McWilliam.
 People may invest in many currencies, stocks and shares, and gold. I suspect that gold features high in the categories of assets that may be recovered. I invite the Government to think about that. It is clear that somebody decided that it was worth including clause 25, rather than merely relying on clause 23 or clause 24, and I therefore assume that it is a simplified process. If that is the case, I wonder whether we are making sufficient use of it. 
 I might ask about that matter in the clause stand part debate. I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Question proposed, That the clause stand part of the Bill.

Dominic Grieve: I wish simply to ask the Minister a question that the Committee has not, perhaps, explored in sufficient detail. In what way is it expected that the procedure under clause 25 will differ, in terms of time or cost, from the procedure under clause 23 or clause 24? If it does not differ, why is it there? I assume it is there as a simplified process, and I would be grateful if the Minister could clarify why it was decided to have it in this form, and how, in practice, it is intended to operate.

Alistair Carmichael: Will the Minister explain why, in clause 25(4)(a), the money that is referred to is restricted to England and Wales? As we are dealing with delivery, jurisdictional questions should not arise.

David Wilshire: I have a question that the Minister can deal with at the same time as the other matters that have been raised. It focuses on the same issue that I will seek to address in clause 26, so—if you, Mr. McWilliam, will indulge me—I shall make the two points at the same time and I will not need to repeat myself.

John McWilliam: Order. I cannot take that chance. The hon. Gentleman should restrict his remarks to clause 25.

David Wilshire: I was trying to speed up the procedure, Mr. McWilliam. I hope that you will not accuse me of being repetitious, if I make the same point again.
 Clause 25 (1)(c) refers to £1,000. In a discussion on a previous clause, the Committee debated varying the amount to take account of fluctuations in the value of money. I assume that the Government hope that the legislation will be on the statute book for a long while, and that it will be effective. Is there no mechanism in legislation that enables sums such as £1,000—or, if I repeat the point later on, £50—to be varied to save us from having to return to the matter and say, ``As time goes by, this is becoming an increasingly silly sum of money, and now, taking account of inflation, it should be a different sum''?

Bob Ainsworth: Clause 25 provides a simplified version. In certain circumstances, the justice's chief executive, who is responsible for enforcing the confiscation procedures, can apply to the Crown court to have a sum of under £1,000 written off.
 As I said to the hon. Member for Beaconsfield, this issue has been raised with us because it is one that has arisen. The hon. Gentleman, thinking on his feet, rightly said, ``Well, the reverse could happen, so why on earth do you not provide your other sums in a simplified version?'' The reason is that the issue has not been raised as a matter of concern. During the formulation of the Bill, nobody told us that that they felt that people had been getting away with the proceeds of crime because of currency fluctuations. If someone had told us that, we might be offering to provide a simplified version to address the matter. 
 The provision is in response to a particular issue that has arisen: the simplified version has been provided to allow the justice's chief executive to get relatively small sums—which have arisen in specified circumstances—off his books, so that he can get on with his other duties. 
 The provision refers to England and Wales because we are dealing with parts of the Bill that apply to England and Wales. Northern Ireland will be dealt with in part 4, and Scotland will be dealt with in part 3: the provisions in those parts of the Bill will refer specifically to Scotland and Northern Ireland. However, there will be no difference in the way in which the provisions are applied in the different jurisdictions.

Alistair Carmichael: I may have misread the clause, but we seem to be discussing the recovery of the asset rather than the order being made in relation to it. That would be a jurisdictional point that would make perfect sense. It is perfectly proper for a court to make an order in England for recovery of assets that are situated elsewhere.

Bob Ainsworth: I may have confused the hon. Gentleman. The Bill has different sections for England, Wales, Scotland and Northern Ireland. That is the only reason for the provision. We are not suggesting that the matter is a jurisdictional issue and should not apply across the border. The Bill has been written in a way that reflects the different legal framework north of the border—as we discussed in relation to criminal confiscation. This part applies to England and Wales, and a subsequent part applies to Scotland. The intention is not that the provision should not apply. The way in which the Bill has been written and the structure of the Bill leads to the words to which the hon. Gentleman draws attention.
 Question put and agreed to. 
 Clause 25 ordered to stand part of the Bill.

Clause 26 - Small amount outstanding: discharge of order

Alistair Carmichael: I beg to move amendment No. 66, in page 17, line 32, leave out `50' and insert `1000'.
 The amendment would delete from subsection (1)(c) the reference to £50 and would replace it with a reference to £1,000. The rationale behind the amendment is fairly straightforward. It seems to me that when we have a de minimis provision, we must be careful about the level specified. If we create a mechanism that allows for the recovery or discharge of orders in cases in which the amount remaining to be paid is that low, we risk creating a provision that will cost an awful lot more than it is worth. 
 Parallel provision is made in clause 25(1)(c). As the hon. Member for Surrey Heath said, £1,000 is the sensible level to set. A symmetry is involved, which is the basis of the amendment. The amendment is perfectly simple. The Minister is an honourable man of great common sense, and I invite him to accept the amendment and restore some of the will to live that I feel ebbing away from many Committee members.

Nick Hawkins: When I read the amendment, I wondered why the amount specified was £1,000 rather than £100, for example. I am glad that the hon. Member for Orkney and Shetland confirmed that I correctly anticipated him, Mr. McWilliam, when you ruled me out of order for so doing during the debate on the previous clause.
 I anticipate that the Minister will say that there is a difference between the inadequacy of an available amount after the discharge of an order and the circumstances with which the clause deals, when a small amount is outstanding. However, I shall be as interested as the hon. Member for Orkney and Shetland to hear the Minister's response and whether there is any real difference.

Mark Lazarowicz: The amendment proposed by the hon. Member for Orkney and Shetland has some merit, but I do not believe that the amount specified should be £1,000. I appreciate the argument for a different approach for clauses 25 and 26, but the Minister might consider whether greater flexibility might be allowed for the court in relation to the de minimis amount. I urge him to recognise that some valid points are being made through the amendment, even if the level of £1,000 may be too high to allow such flexibility.

Mark Field: I agree with the hon. Member for Orkney and Shetland, although there was also a lot of merit in the comments of the hon. Member for Edinburgh, North and Leith (Mr. Lazarowicz). The Minister might consider allowing the court greater discretion. In practical terms, as my hon. Friend the Member for Beaconsfield said about the previous discharge of orders and the relatively small amount, if we are directing the measures toward the Mr. Bigs, £50 is absolutely de minimis and one may argue that sums running to thousands of pounds would be small. The logistics of chasing down small remaining moneys may be expensive. Did the Minister give thought to giving a court overriding discretion about very small amounts, perhaps between £50 and £1,000, given the large-scale Mr. Bigs who will come under the purview of the confiscation order?

Bob Ainsworth: I am in great danger of damaging the reputation of Englishmen by responding to a Scottish Member in the terms that I am likely to use. We must consider the interrelation of clauses. There is provision in clauses 23 and 24 for prosecuting authorities and defendants to apply for the recalculation of available amounts. Clause 25 specifies circumstances in which to write off up to £1,000 because a straightforward calculation can be made to show that the available amount has changed for understandable reasons, such as the fluctuation of currency.
 We are not discussing whether there should be reconsideration of the available amount. The clause provides for situations in which the amount is clearly attainable but is not worth chasing. We want to provide a fall-back position when the amount is not worth chasing. All the bureaucracy would have been conducted and all costs incurred, but relatively small amounts might be knocking around on the books for ever. If they are not worth chasing, there should be a provision to write them off and remove them from the ledger. 
 I obviously have a different value structures to other hon. Members, and I would be unlikely to let a person go and not think it worth it to chase an amount up to £50, let alone £1,000, as anybody who knows me will attest. A de minimis figure should be de minimis. 
 We have a structure in which we allow reconsideration of the available amount and, in specified circumstances, we set the level at £1,000. Where there are no specified circumstances, we are able to write off very small amounts. That provision is not in current legislation and such amounts stay on the books. I thought that £50 might be a little high rather than low, and I do not know why courts should not chase money that is outstanding. I would be totally opposed to raising the amount, and I ask for the amendment to be withdrawn.

Alistair Carmichael: I fear that, as with earlier provisions, we may end up with a risk of courts being overwhelmed by nonsense such as this. It is not worth the candle to have court proceedings to discharge an amount lower than £50. If the provision is to be meaningful, the amount should be higher.

Bob Ainsworth: The court would not have sought a confiscation order for £50 or £55. The provision relates to amounts of less than £50 that remain on an order that has already been chased. As I have said, there is no provision in the legislation to write off even 50p. The amount is small.

Alistair Carmichael: It is more than small. In terms of the figures that we should be discussing or the people at whom the Bill is aimed, the amount is miniscule. I hesitate to draw attention to the fact that subsection (2) gives the court discretion, in case a Government amendment appears tomorrow removing that discretion. However, even if the figure were closer to £1,000 or any other figure, the court would still have discretion.

Paul Stinchcombe: If the hon. Gentleman is trying to avoid the court being swamped with applications, is it not likely that there would be more applications to discharge if the levels proposed were higher than £50?

Alistair Carmichael: Swamped was perhaps an injudicious use of language. My point was that courts should not have their valuable time taken up in dealing with sums of £50 or less. The point is made. I would not die in a ditch over it, and I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. Clause 26 ordered to stand part of the Bill.

Clause 27 - Information

Dominic Grieve: I beg to move amendment No. 110, in page 18, line 4, leave out paragraph (d).

John McWilliam: With this it will be convenient to take amendment No. 118, in Clause 33, page 22, line 1, leave out subsection (10).

Dominic Grieve: The amendment is a plea for clarity. The clause is brief and deals with the provision of information in cases that come under clauses 20, 21 or 22. It states:
``In such a case—
(a) the prosecutor or the Director . . . must give the court a statement of information within the period the court orders''.
 It then states: 
``(b) section 17 applies accordingly (with appropriate modifications where the prosecutor or the Director applies under section 22);
 (c) section 19 applies accordingly;
 (d) section 19 applies as it applies in the circumstances mentioned in section 19(1).''
 If one goes chasing off through the Bill to find clause 19(1), one discovers that that does not provide an answer, because it tells us that 
``This section applies if—
(a) the court is proceeding under section 6 in a case where section 6(3)(a) applies, or
(b) it is proceeding under section 6 in a case where section 6(3)(b) applies or it is considering whether to proceed.
 If the legislation is designed to be self-explanatory, this is hopeless. We have—the amendments have been grouped correctly—another, similar instance in clause 33, which amendment No. 118 would amend. That clause is entitled ``Court's powers on appeal''. It contains long and complex provisions and deals, under subsection (9), with section 11. Clause 33(10) states: 
``Section 27 applies as it applies in the circumstances mentioned subsection (1) of that section.''
 If one examines clause 27(1), it states: 
``This section applies if—
(a) the court proceeds under section 6 in pursuance of sections 20 or 21, or
(b) the prosecutor or the Director applies under section 22.''
 I am looking forward to the Minister providing me with a comprehensible explanation as to what is happening in both these clauses.

Nick Hawkins: Would not Sir Humphrey have been proud of this drafting?

Dominic Grieve: Yes. Draftsmen argue that they should provide the bare bones. The provision will obviously be embodied in a more practical order, but it will still have to be examined and I feel that duplication may be inevitable if comprehensibility is to be achieved. It is one thing to be referred to a section that is self-explanatory, but the reader is referred off to another section, which then refers him to another section, by which stage, the causal connection between one and the other will literally require the pages to be photocopied and put alongside each other. To my mind, that is not good drafting. Will the Minister consider making improvements? I realise that that will be difficult given that the Bill is already at this stage. Other clauses may demonstrate the problem, but clause 27 is the one on which it really hit me. The circularity of it could be altered, so will the Minister ask his officials to do something about it?

Bob Ainsworth: What came to my mind was not that Sir Humphrey would be proud, but that we should be proud of the hon. Member for Beaconsfield for pursuing the parliamentary draftsman through the caverns of the legislation more effectively than Alice pursued the white rabbit. The effort that he appears to have put in is extraordinary, and I congratulate him on it.
 The first amendment would prevent the Crown court from ordering a defendant to provide information at the revaluation hearings. The second would apply when the court of appeal proceeded under clause 6 following a prosecutor or director's appeal, and when the Crown court proceeded under clause 6 at the direction of the court of appeal. It would prevent both courts from having a statement of information from the prosecutor or director. It would also prevent the court from ordering the defendant to provide information at a hearing following a prosecutor or director's appeal.

Nick Hawkins: I appreciate that the Minister is setting out the advice provided by his officials, but I do not think that it can be right. He suggests that the deletion of clause subsection (2)(d) would have dire consequences. As my hon. Friend the Member for Beaconsfield pointed out, that paragraph is entirely circular. It simply states that
``section 19 applies as it applies in the circumstances mentioned in section 19(1)''.
 If subsection (2)(d) were removed, clause 19 would still apply as it would still be part of the Bill. When we debated clause 19, we ordered that it stand part of the Bill, so it will apply, but clause 27(2)(d) adds nothing. It is simply a statement of the obvious and the circular. Removing it would have no dire consequences.

Bob Ainsworth: I understand what the hon. Member for Beaconsfield said about the purpose of the amendment as an appeal for clarity, but we have had to consider what it means. The hon. Member for Surrey Heath challenges our view of what the amendment would do, but as the hon. Member for Beaconsfield has said that the amendment was merely an appeal for clarity, we are in danger of chasing ourselves down a few rabbit holes.

Dominic Grieve: My hon. Friend the Member for Surrey Heath may be right. He has a valid point when he says that other clauses still stand even if they are not specifically referred to. The point of referring to them is to aid clarity. I am not much clearer about what is intended—not by my amendment, which is probing as the Minister understands, but by the cross-reference and the lack of clarity that surrounds it. I was trying to highlight the fact that I was unsure of what the provision meant, because I could not follow the tormented and tortuous labyrinth that one must go through to arrive at an answer.

Bob Ainsworth: The legislation is complicated. If the hon. Gentleman's only point is to pursue the draftsman for being incapable of doing his job and to suggest that he is more capable, there is no point of principle behind his remarks. Obviously, I want the legislation to be as clear as possible.

Paul Stinchcombe: I wonder whether the hon. Members for Beaconsfield and for Surrey Heath are deliberately trying to confuse the Committee. Clause 27(2)(d) is not circular in its references to section 19 and 19(1), but is predicated on applications being made under clauses 20, 21 and 22. It incorporates the section 19 procedures into those applications.

Bob Ainsworth: I accept the point made by the hon. Member for Beaconsfield that we may want to consider how the legislation could be drafted more clearly, but unless we can come up with ideas about how to make clear the purpose of the clause and make it easier to read, I see no reason why we should not use the current wording.

Dominic Grieve: My hon. Friend the Member for Surrey Heath may have a point, notwithstanding what the hon. Member for Wellingborough (Mr. Stinchcombe) says, but that was not the purpose of my intervention.
 If it is difficult—not impossible, but difficult—for me, a lawyer, to follow the thread of the legislation, is it not time for the draftsman to consider whether he should restate in full the provisions of clause 19(1) that apply to this clause on information? Clearly, that would make the Bill longer, which is a disadvantage, but if the Bill is that difficult to follow, perhaps it should restate the earlier provisions. There is much repetition in the Bill. If you wanted, you could draw cross-references between all the clauses, but the whole Bill would be unintelligible.

John McWilliam: Order. I have been trying to cross-reference the Bill throughout our proceedings.

Bob Ainsworth: We could make the Bill twice as long but its intentions are clear from the current drafting. I do not know what more to say to the hon. Gentleman, who seems to be arguing merely that the Bill is too complicated. If he can tell us how to make it clearer, we will be happy to consider his proposals.

Dominic Grieve: I am slightly disappointed by the Minister's response because the Committee has a duty to try to achieve clarity, notwithstanding that this is a complex legal document. It is difficult to achieve clarity in clause 27. Subsection (2)(d) states:
``section 19 applies as it applies in the circumstances mentioned in section 19(1).''
 However, clause 19(1) refers the reader to the provisions of clause 6, so why does the clause not cross-reference directly to the relevant provisions of clause 6? That simplification could be made without setting out in full the provisions of clause 6(3)(a) and (b). It is undesirable to send the reader off on a trail through the legislation, if it can be avoided. 
 I am not trying to score a cheap point against the draftsman. I never cease to be amazed at the quality of draftsmanship. Having seen drafting being done, and from my experience during the previous Parliament when I sat on the Joint Committee on Statutory Instruments, I am aware that drafting is a complex and difficult task that takes a great deal of training. Some people clearly enjoy the task, for which we should be grateful, and it requires a certain turn of mind to do it well. That is not a reason why we should blindly accept what has been offered; we can improve legislation only by highlighting areas where we think there might be difficulty and suggesting improvements. It is as simple as that. I happen to think that this is a particularly bad example—it might be better to described it as a good example—of such a labyrinth becoming excessive. 
 Subject to that, and with the hope that the Minister might care to discuss the matter with his officials, I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Question put and agreed to. 
 Clause 27 ordered to stand part of the Bill.

Clause 28 - Defendant convicted or committed

Dominic Grieve: I beg to move amendment No. 111, in page 18, line 20, leave out `appropriate' and insert `just and reasonable'.

John McWilliam: With this it will be convenient to discuss amendment No. 113, in page 19, line 12, leave out `appropriate' and insert `just and reasonable'.

Dominic Grieve: This is slightly more than a textual amendment.

Bob Ainsworth: It has more substance.

Dominic Grieve: Yes, it does. I must tell the Minister that one does not want to make lengthy points on clauses that not only appear to be innocuous but on which there is likely to be agreement. Nevertheless, although it is easy to tick off clauses because they look all right in the generality, it is often those clauses that later cause so much trouble. I am simply trying to do my job properly.
 Clause 28 deals with defendants who are convicted or committed who have absconded. Subsection (2) sets out the circumstances in which the defendant is convicted or committed. Subsection (3) states: 
``The second condition is that—
(a) the prosecutor or the Director applies to the Crown Court to proceed under this section, and
(b) the court believes it is appropriate for it to do so.''
 I hope that the Minister will forgive me for saying so, but in my career at the Bar I have discovered that the word that features most frequently in a barrister's vocabulary is ``appropriate''. Indeed, to such an extent is that so that I have known wagers to be taken between barristers—first, on who will be the first to use the word ``appropriate'' or sometimes the word ``inappropriate'', and secondly on whether a barrister can get through a speech or submission without using either of those words.

Nick Hawkins: I had not heard of that wager, but it occurs to me that it is rather similar to the word ``sustainable'' in new Labour's vocabulary. [Mr. Stephen McCabe in the Chair]

[Mr. Stephen McCabe in the Chair]

Dominic Grieve: I suspect that my hon. Friend may have struck a sensitive spot. Other similar words feature in the vocabulary and become overused.
 What does ``appropriate'' mean? The amendment suggests that we are asking the court to make an evaluation as to whether it is just and reasonable to proceed. The appropriateness or inappropriateness of a case is not a proper definition; it can refer to almost anything. What is its derivation, and why is it used? It may simply have featured in earlier legislation. Even if it does, that is not necessarily a reason to retain it if another phrase better meets the need. 
 A more fundamental concern is that proceedings when defendants abscond should take place only when it is just and reasonable that they should do so. That means that it would be in the interests of justice, if it is reasonable, and if the court has made an evaluation that, in so far as the defendant may be disadvantaged, it is justifiable that he should be so because of his conduct.

[Mr. John McWilliam in the Chair]
 I am not sure that the word ``appropriate'' meets the case. If the Minister disagrees with me, I should like to know in what way he thinks that the word ``appropriate'' is better than the words ``just and reasonable'', because the issue does have an impact.

Alistair Carmichael: I listen carefully to what the hon. Gentleman says, because although on the face of it many of his amendments seem to have little merit, when he explains them, there is a germ behind them. However, I do not understand where he is coming from with this amendment. Will he explain when it would not be ``appropriate'' for a court to act in a way that was ``just and reasonable''? Why must the amendment include both ``just'' and ``reasonable''? How could a court act reasonably if it did not act justly, or justly if not reasonably?

Dominic Grieve: The hon. Gentleman has made a good point. When I considered my draft, I wondered whether I should have put only the word ``just'' or only the word ``reasonable''. I decided to use both, first, because I was satisfied that the Minister was unlikely to leap up and accept the amendment on the spot, and secondly, because I wanted to offer an alternative. I am content to use either of those two words. I am not anxious about either the word ``just'' or the word ``reasonable'', but I am concerned about the word ``appropriate''. If we are going to use that word, I should like to know what are the criteria of appropriateness and inappropriateness. It would be better to use the words ``reasonable'' or ``just''. One way or the other, the matter should be considered further.
 Amendment No. 113 does exactly the same as amendment No. 111, but to clause 29. I do not want to repeat myself, as the issues are identical. The amendments are more than just an exercise in semantics. I am not satisfied about what is meant by the word ``appropriate''. I should like examples from the Minister of when it would be inappropriate to proceed under clauses 28(3)(b) or 29(3)(b).

Bob Ainsworth: The hon. Gentleman will be hugely relieved to know that my example does not refer to the Bill. Opposition Members are not responsible for the word ``appropriate'', no matter how often he uses it in court, and no matter how many times he makes wagers about how many times other people use it.
 The Bill gives the court the general discretion to decide whether to make an order. We are at a loss to understand what the hon. Gentleman wants to achieve through his amendment. The court will consider that it is appropriate to proceed under the clauses only if it is just and reasonable, or just, or reasonable, to do so. We are giving the court the discretion to consider whether it is just, reasonable, just and reasonable or appropriate to proceed. He seems to be trying to replace one word with three for no reason.

Dominic Grieve: I am not. If the Minister can satisfy me that the word ``appropriate'' has been judicially considered and defined to give it a meaning of ``just and reasonable'' I will not have the smallest quibble with him. I will withdraw the amendment and stop worrying about it.
 The word ``reasonable'', and the term ``just and reasonable'' have been considered. I would, however, like clarification that the word ``appropriate'' has been considered, to give it the construction that the Minister has now most helpfully told the Committee that it should have. The hon. Member for Redcar (Vera Baird) may provide him with immediate advice on that subject, in which case, he can tell me.

Bob Ainsworth: I cannot tell the hon. Gentleman the exact origins, nor who first thought of the appropriateness of the word ``appropriate''—as opposed to ``just and reasonable''—or any other combination of those words. ``Appropriate'' is a word that is well understood, as the hon. Gentleman quite rightly pointed out, and is used more than frequently in the courts. We see absolutely no reason for, or advantage in, changing the word, at least not to the configuration that he suggests. I cannot say any more than that. I am trying not to disparage his efforts to improve the Bill, but we have been unable to fathom any change whatever that would result from the amendment.

Dominic Grieve: I am really disappointed with the Minister's answer. I hoped that the hon. Member for Redcar would whisper in his ear and say that she had an immediate knowledge of appropriateness and inappropriateness.
 I raise this issue because ``appropriate'' is an abused term. I still maintain that the word ``reasonable'' would be a better term to use. I am disappointed that the Minister has not provided a concrete explanation based on any legal precedent. I expected him to say that it had been used in other legislation, that it had been considered and found to be equivalent, but he has not. He may wish to make some inquiries, and perhaps he would drop me a line about it. We can then consider whether to revisit this issue on Report.

Bob Ainsworth: Is it appropriate for the hon. Gentleman to be as disappointed as he is?

George Foulkes: Or even just and reasonable?

Dominic Grieve: I am grateful to the Minister for his comments. I am not satisfied that the provision is as well worded as it should be. It is about justice and reasonableness, and while all those words may be—as he said—subsumed into the word ``appropriate'', it is capable of having a different meaning. The phrase ``reasonable and just'' has a clear meaning that is well understood. I am half tempted to press the amendment to a Division. However, in order to give the Minister time to inform me of the basis for using the word ``reasonable'', I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

Dominic Grieve: I beg to move amendment No. 112, in page 18, line 34, leave out `11'.

John McWilliam: With this it will be convenient to take amendment No. 114, in clause 29, page 19, line 26, leave out `11'.

Dominic Grieve: Subsection (5) states that if the court proceeds
``under section 6 as applied by this section, this Part has effect with these modifications''.
 Subsection (5)(d) states that: 
``sections 11, 17(4), 18 and 19 must be ignored''.
 As the Minister will know, clause 11 concerns assumptions to be made in the case of a criminal lifestyle. Unless I have misunderstood, it must follow that the assumptions are jettisoned completely in the case of a defendant who absconds. That applies to both clause 28 and clause 29, where the defendant has been neither convicted nor acquitted. 
 Will the Minister confirm my interpretation that clause 11 is disapplied? The system in operation is that where the defendant absconds after conviction, or even if he has been neither convicted nor acquitted, the process undertaken—I hesitate to use the term ``rubber-stamped''—is that the assets are seized. It is as simple as that, because the assumptions do not have to be made.

Bob Ainsworth: The assumptions cannot be made because they cannot be rebutted. The assumptions procedure requires a reversal of evidence, so it does not have the effect to which the hon. Gentleman referred.

Dominic Grieve: I am grateful for that clarification. I understand that in those circumstances it is, in a sense, a one-way street because the defendant is not in a position to rebut the assumptions. The inevitable consequence of a system in which assumptions have to be made is that there is no exit for the defendant.
 The reason for tabling the amendments dovetails with the provisions under clause 29, and part of the argument might be better made under the debate on clause stand part. However, I will touch on it now and alert the Minister to my point. We will then return to it in the stand part debate on clause 29. 
 There is a system of civil recovery under the new provisions. As I read the legislation, I started to consider the particular problem of the defendant who has absconded without being convicted or acquitted. One may argue that because he has absconded, he has forfeited all his rights, and confiscation will take place under clause 29. As the Minister explained at some length, one reason why the confiscation procedure is so draconian, and properly so, is that someone has been convicted of offences. However, we retain the principle in this country that the person is not guilty until he has been found guilty. 
 There is no principle of trial in absentia, except in the case of corporations. Individuals are not tried in their absence, so if they happen to have absconded, they can be treated as innocent of any offence until such time as they are recovered and brought to court. On top of anything else that they may have done, or independently of it, they may be guilty of the offence of having failed to answer their bail. Nevertheless, they are not guilty of the offence for which they have been charged. 
 Given the way in which the confiscation mechanism is designed to work in the case of a person who has absconded, the question arises whether in those circumstances there is an argument that with the new provisions for civil recovery we should not have clause 29 and related clauses at all. That is a fundamental issue, and I am aware that the Minister will argue that that would result in a diminution of the power of the Bill. It is, however, a curiosity, and I suspect that it is also a relic of a system in which we did not have the civil recovery procedure as an alternative. It just troubles me a little that someone who absconds without having been tried does not fall within the criteria of clause 6. In those circumstances I wonder whether we need to keep the power at all. 
 6.30 pm

Bob Ainsworth: It may be more appropriate for us to have that substantive discussion on clause 29. I thank the hon. Gentleman for clarifying his reason for tabling the amendments. For one minute I thought that he was trying to toughen up the legislation quite considerably and get us to apply the assumptions procedure to an offender who had absconded. Now that he has effectively said that that is not is his intention and I have explained that it is not our intention simply to apply the confiscation procedure, but that the assumptions will not be applied in the absence of such an offender, it might be helpful if he withdraws his amendment and we move on to consider the substantive issue on clause 29.

Dominic Grieve: I am happy to do that. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 28 ordered to stand part of the Bill.

Clause 29 - Defendant neither convicted nor acquitted

Question proposed, That the clause stand part of the Bill.

Dominic Grieve: I do not wish to repeat what I said earlier, but there seems to be an issue here. It would be helpful if the Minister could take me through the procedure under clause 29 so that the Committee can understand how it differs from other procedures. If I have understood it correctly, there is a mechanism for confiscating the assets of someone who has not stood trial and who might not otherwise fall within the criteria for confiscation. If that is correct, why are we retaining it when we have a civil power to do exactly that to unconvicted criminals?
 As these provisions cast the net so much wider by focusing not on offences or the proceeds linked to an offence, but on the whole criminal life and general criminal conduct, is there not a risk of injustice? After all, it is perfectly possible to bring civil proceedings in someone's absence and it is usually quite easy to prove one's case. Most of us who have been in the civil courts have had to go to court to prove our case in the absence of a defendant. It is not unusual. In those circumstances I seek the Committee's opinion as to whether it is correct to keep that power and extend it across a wide variety of offences and circumstances when an alternative is available.

Stephen Hesford: I am obliged to the hon. Gentleman for giving way. Subsection (3)(b) contains the appropriateness provision. Does he not accept that if a defendant deliberately absconds, and has done so for a substantial period, it might be more difficult to go after him under the civil procedure? There should be a residuary element under this procedure if the judge, on examining the full circumstances of the deliberate absconding, decides that it could apply.

Dominic Grieve: I accept that that the hon. Gentleman may have a point. We have not had a chance to look at the civil procedure. From what I have read of it, it will apparently be a powerful tool in the hands of the director for recovering money from individuals who have not been convicted of offences. There may be—[Interruption.]

John McWilliam: Order. Just because the hon. Member for Glasgow, Pollok is in his dinner suit and looks like he is moonlighting for the Refreshment Department, other members should not discuss it while the hon. Gentleman makes his case.

Dominic Grieve: The civil recovery procedure may create problems in relation to legal proceedings being brought against an absentee. In my opinion, it is perfectly possible to cure that by amending the procedure. In my experience, civil proceedings can be brought against someone who has absconded by serving notice at their last known address in this country. There are a number of other provisions that can be used if necessary, but we should not get away from the underlying principle.
 The confiscation regime has now been greatly strengthened—we supported that in principle—for the purpose of targeting assets linked to crime over a specified period, and those resulting from a criminal lifestyle. However, it depends on someone having a criminal lifestyle and the building blocks that lead up to it. If those blocks are not there because a person has not been convicted, should we use the procedure against that person?

Nick Hawkins: My hon. Friend's argument reinforces the point raised by the previous amendments, which attempted to delete the references to clause 11 in clauses 28 and 29. It seems odd that we have an exact parallel of the provisions, including the reference to clause 11, in clause 28, where it might be less exceptionable when the defendant has been convicted or acquitted, and in clause 29 where, as the hon. Gentleman says, the defendant will not have been convicted or acquitted particularly as there will have been no conviction—is very odd indeed.

Dominic Grieve: I agree with my hon. Friend. The best thing that I can do now is to listen to other Committee members and, in particular, to the Minister. If we find that there is a point to be made, perhaps we can have a more developed debate on the subject.

Alistair Carmichael: I find myself in some sympathy with the argument of the hon. Member for Beaconsfield, which I urge the Minister to consider. It strikes me that we are in danger of dealing with a provision that is a relic of previous legislation and does not take sufficient account of later provisions that provide for recovery through the civil courts without the need to obtain a criminal conviction first.
 I remind the Minister that part of this concern was raised on Second Reading. The Bill should include a clearly defined hierarchy of the different options that are open to the authorities when seeking to confiscate assets. If that were included, many of the hon. Gentleman's concerns, which I share, may be answered.

Nick Hawkins: The hon. Gentleman, with whom I agree, will recognise that we tabled amendment No. 115, which seeks to delete clause 29. It was not selected because it would amount to a clause stand part debate and I understand the reason for that. Does the hon. Gentleman agree that we should delete the clause altogether?

Alistair Carmichael: No. I am not yet sufficiently persuaded. I chose the words ``some sympathy with'' quite deliberately. I wait to hear what the Minister has to say, but it is appropriate that the concern has been raised, and will perhaps be addressed later.

John McWilliam: Order. Before I call the Minister, may I clarify that the amendment was not selected because, as the hon. Member for Surrey Heath rightly said, it is a wrecking amendment and the same result could be achieved by dealing with the clause?

Bob Ainsworth: I wish to make a point, which I hope will not provoke the hon. Member for Beaconsfield or the Chair. We are considering an substantial issue and it is a great shame—I will put it no more strongly than that—that, having agreed a programme motion, and having adjusted it to accommodate issues as we were requested, we have come to consider this matter only now, after we have debated subjects such as whether to replace the definite article with the indefinite article, and whether to replace three words with one, when there is no discernible difference between the alternatives. I hope that that was not the intention behind some of our previous debates.
 Clause 29 enables the court to make a confiscation order in absentia, when criminal proceedings have been started against a person who absconds before conviction. The clause's key change is to extend the power to make a confiscation order in absentia: that used to apply only to absconding drug offenders but will now also apply to people who have been charged with other crimes. The provision exists in legislation relating to drug offences, but we are broadening it—so the provision broadens with the legislation. The justification for the power is the same as in clause 28: no defendant should escape confiscation by absconding. 
 If a person flees justice, it would not be right for them to be able to frustrate a confiscation order in its entirety. I appreciate that there are good reasons why our criminal justice system does not generally allow proceedings to take place in absentia, but that does not mean that such proceedings should be prohibited when there are good reasons for them. 
 There are several safeguards: the main one is that of legal representation for the absconder, and I can confirm that such representation will always be provided in the form of amicus curiae— a term with which hon. Members who are lawyers and barristers will be more familiar than I am. Moreover, third parties are allowed representation at an absconder's confiscation hearing, even though that is not possible at an ordinary confiscation hearing. That is because, at an ordinary confiscation hearing, the defendant can call witnesses who might be third parties. 
 In the absence of the defendant, a wider right of representation should be permitted. In addition, an absconder who returns and is acquitted, or who is not proceeded against, can have that confiscation order cancelled, and there is special provision for compensation under such circumstances. 
 The hon. Member for Orkney and Shetland said that he had some sympathy with the point that was raised by the hon. Member for Beaconsfield. He said that he would feel more comfortable if there were a hierarchy in respect of the use of the procedure. One of the main points made in that regard was that civil recovery is appropriate, and that in certain circumstances it should be used rather than confiscation. 
 I do not know whether the hon. Gentleman is objecting to the fact that the hierarchy is not written into the Bill, but I assure him that there is intended to be a hierarchy. I believe that I have distributed the guidance that will be given for the use of these powers to all Committee members, and that hierarchy clearly states that the pursuit of the criminal through normal criminal proceedings should come first and foremost; that confiscation—under part 2 as it applies to England and Wales, and under part 3 as it applies to Scotland—should come second; and that only in cases in which those are not being considered should we consider civil recovery under part 5. 
 That hierarchy does exist. Part may be usable in principle, but I invite the hon. Gentleman to consider when such circumstances may arise. Proceedings have already commenced. The charge has been made. In all probability—although not necessarily—a restraint order has been placed on the defendant. Let us suppose that the defendant absconds in the middle of the proceedings. If he reappears, he has the ability to challenge the confiscation order, and as I have said, he can knock it down and receive compensation in such circumstances, too. 
 Is it right that, in those circumstances, we oblige the law and order authorities to abandon the case and to pick up with a wholly separate civil recovery procedure to pursue the assets? I recognise that that point is substantial and important.

Nick Hawkins: We shall no doubt debate in detail the civil recovery procedure when we reach part 5. As drafted, part of the conditions precedent and the trigger of subsection (2)(c) is that the person should have absconded for two years before such a procedure can start. Is not the great likelihood that the part 5 procedure will be much preferable in such circumstances when there has not been a criminal conviction, because the authorities can go through the part 5 civil recovery procedure? Unless I have misunderstood matters, they do not have to wait for two years. There is no delay mechanism. The Government have inserted the safeguard of a two-year delay procedure under subsection (2)(c). I am sure that all members of the Committee will understand why we want to hit the Mr. Bigs, but will they not be hit by the civil recovery procedure if they have absconded because that would be preferable to waiting for two years?

Bob Ainsworth: That may well be the position. I accept the point that the legislation applies only to drug traffickers. By way of information, a confiscation order has never been proceeded with in absentia against an absconder in England and Wales. I am not sure of the position in Scotland, but it is not something that is entered into lightly.

Nick Hawkins: Is such a provision on the statute book?

Bob Ainsworth: Yes.

Alistair Carmichael: Does that not suggest that it would be more appropriate to proceed under the provisions in part 5?

Bob Ainsworth: As I have said, there could be such circumstances. I am asking the Committee to consider whether we should review that ability. Part 5 is intended for use only when, for various reasons, a person cannot be pursued through the criminal courts. Part 2 is meant to be the appropriate and main method of confiscation. When anyone is pursued under criminal procedures, the defendant has probably been charged and we have restrained the goods, although that is not done on every occasion, after which time he absconds. Do we want to remove that ability from the legislation and render it not possible to confiscate the proceeds in such circumstances?

Dominic Grieve: The Minister has gone some way towards answering his own question. I am grateful to him, because he has been willing to share his understanding of the difficulty. He said that, as far as he is aware, the power has never been used. That highlights its unusual nature in relation to someone who has not been convicted. I understand why it existed in the past, but we are introducing a part 5 recovery procedure, which we all support in principle, yet we are retaining a procedure that has been shown, by its non-use, to pose uncertainties, problems and probably some anxieties about its potential unfairness and the problems that could flow from it. Is that not a compelling reason why we should hesitate about retaining it when an alternative is available? After all, if the goods are under restraint, they will not disappear while the civil proceedings are brought into play.

Bob Ainsworth: Let me say that I am worried about one aspect of removing it, about which I am not sure that the hon. Gentleman has thought. Despite the fact that part 5 may be available, the defendant may know his circumstances, and, in all probability, knows them far better than anyone else. He may know the potential for civil recovery, and he may have sufficient legal advice to give him an idea of the potential for that to be successful compared with a process of criminal confiscation that has already been started. If we remove the provision from the legislation, might we not be encouraging people to abscond? I ask the hon. Gentleman to reflect on that. It may not have been used, but as I heard my hon. Friend the Member for Redcar say from a sedentary position, that may be because people have not managed to abscond or stay away for a period of two years. Removing the provision from the legislation has potential consequences. It is not a provision that should be used lightly, but the hon. Gentleman should reflect that, in certain circumstances or with certain advice, it may be not be as practical to pursue the proceeds of crime when confiscation proceedings have already been started under part 5. By removing the provision in its entirety, we may give people an incentive to abscond in order to keep their ill-gotten gains.

Nick Hawkins: I am listening carefully to the Minister, and I understand his argument. At the same as time as we are considering his points, will he consider with his officials whether, if a provision such as clause 29 remains part of the legislation, it may be appropriate, given the existence of fresh provisions and the extension of the whole regime, to delete the reference to clause 11 in clause 29(5)(d). That relates to the point made by my hon. Friend the Member for Beaconsfield, which I re-emphasised. The Minister has conceded that it is an extended regime, and we need to think about that. Including it in clause 29, which relates to circumstances in which the defendant has not been convicted, is different from including it in clause 28.

Bob Ainsworth: The hon. Gentleman has misunderstood. If we removed the reference to clause 11, we would also be allowing the assumptions procedure to be used when the defendant had absconded. With regard to clause 28 as well as clause 29, many Committee members, with the exception of my hon. Friend the Member for Glasgow, Pollok, believe that the legislation is tough. We are not proposing to use the assumptions procedure in absentia to mount a confiscation order against an individual's general proceeds when he is not there to rebut the case. I do not think that the hon. Member for Surrey Heath wants me to do what he is suggesting, which could bring the assumptions back into the proceedings in absentia. The assumptions should be used only in the particular criminal case in the court at the time that the defendant absconded, and not in general cases.

Alistair Carmichael: I guess that defendants do not abscond because it is close to conviction and they do not have the option open to them—they are in a situation of restricted liberty. If the provisions of part 5 were in place, it would come to the same end for the defendants. I do not see why they would be encouraged to abscond if that gave rise to civil rather than criminal recovery. A further merit is that there is a certain neatness and cleanness in leaving the criminal proceedings in limbo and untainted by the recovery procedure, which could be done separately under the civil procedures in part 5.

Bob Ainsworth: I accept that there would be a certain neatness. Equally, the hon. Gentleman must accept that I am not satisfied that using part 5 would be as effective in all circumstances. As he rightly pointed out, we are talking about circumstances in which the defendant has either broken out of custody or is in complete breach of bail. In most cases, we are talking about the former. It would be a retrograde step to remove from the legislation the provision to continue to hold property that has already been restrained after someone has broken out of custody. It could weaken the provisions that we already have for drug offenders, although I accept that we are widening the legislation.
 I accept that that is an important issue, but for the reasons that I have mentioned, I urge the Committee to accept clause 29 and maintain the provision in the legislation. 
 Question put and agreed to. 
 Clause 29 ordered to stand part of the Bill.

Clause 30 - Variation of order

Amendment proposed: No. 29, in page 20, line 4, leave out from `(d)' to `he' in line 5.—[Mr. Carmichael.]

Bob Ainsworth: I am looking at my hon. Friend the Minister of State, Scotland Office in his best bib and tucker, and at the clock, and I am wondering what kind of mess I will get myself into if I am not careful in responding to the amendment.

Mark Field: Looking at the sartorial display on the Government Benches, will the Under-Secretary confirm whether it is the Law Society of Scotland dinner tonight?

Bob Ainsworth: The hon. Gentleman must interrogate my hon. Friend the Minister of State about where he intends to go.

Alistair Carmichael: If I may assist the Under-Secretary, I tabled the amendment because all the other time-limited provisions act against the interests of the defendant or non-state party. I see no reason why this should be one more.

Bob Ainsworth: I draw the hon. Gentleman's attention to clause 31, before we discuss clause 30—

David Wilshire: On a point of order, Mr. McWilliam. I am conscious that in a matter of seconds that you will be putting several questions to the Committee, as you are required. I make it clear to the Committee that when you do so our silence will not be showing our approval of such matters. We have done our best to scrutinise provisions, and we reserve the right to return to them on another occasion.

John McWilliam: That is not a point of order.

Ian Davidson: It is just a waste of time.

Bob Ainsworth: I was about to say that.
 It being Seven o'clock, The Chairman proceeded, pursuant to Sessional Order D [30 October 2001] and the Order of the Committee [13 November 2001], to put forthwith the Question already proposed from the Chair. 
 Amendment negatived. 
 Clause 30 ordered to stand part of the Bill. 
 Clauses 31 and 32 ordered to stand part of the Bill.

Clause 33 - Court's powers on appeal

Amendment made: No. 38, in page 22, line 3, leave out subsection (11)—[Mr. Bob Ainsworth.] 
 Clause 33, as amended, ordered to stand part of the Bill. 
 Clauses 34 to 40 ordered to stand part of the Bill. 
 Further consideration adjourned.—[Mrs. McGuire.] 
 Adjourned accordingly at one minute past Seven o'clock till Thursday 29 November at five minutes to Nine o'clock.